New York Pizzeria, Inc. is the plaintiff in this case that was brought after its former president allegedly conspired to create a knockoff restaurant chain called Gina's Italian Kitchen using NYPI's recipes, suppliers and internal documents. The lawsuit includes an allegation of a computer hack, but we'll focus on the judge's analysis of the trademark claims.

"Intellectual property plays a prominent and growing role in our Information Age economy," opens Texas judge Gregg Costa's opinion this week. "In this case, though, the plaintiff seeks intellectual property protection for something quite traditional: the meal one might order at a neighborhood pizzeria."

So, we have two pizza shops in a fight over ingredients and flavor. What NYPI is claiming is specifically centered around the resulting flavor of the two pizzas as a matter of trademark infringement. The claim is that their flavor is distinct. So distinct, in fact, that consumers would recognize it as solely NYPI's, even if coming from Gina's Italian Kitchen. The judge, as it turns out, was exceptionally good on this claim.

"As with colors, it is unlikely that flavors can ever be inherently distinctive, because they do not 'automatically' suggest a product's source," he writes. But even if pizza fans can close their eyes, bite into one, and recognize a slice of New York Pizzeria when they taste it, Judge Costa gives a second reason why trademark protection can't extend to taste: "Functional product features are not protectable," he writes.

The judge points to a prior decision at the Trademark Trial and Appeal Board as precedent. a pharmaceutical company attempted to gain a trademark on the orange flavor of its medicine, but that was ruled out-of-bounds when the TTAB decided that by flavoring a disagreeable taste, the company merely "performs a utilitarian function that cannot be monopolized without hindering competition in the pharmaceutical trade."

Judge Costa goes on to note that the scrutiny of trademark law applying to the flavor of pizza logically should be much greater than even the flavor of medicine. It's a very nice way of calling this whole thing silly and telling everyone to go home. The case has been summarily dismissed, thankfully. Were this sort of dispute allowed to find any kind of foothold, a well-functioning foods industry could be tossed completely for a loop. The trademark-able flavor angle would essentially be an end-around the fact that copyright doesn't apply to recipes. After all, if you can simply protect the end result of the recipe, what would be the difference?

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

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]]>urls-we-dig-uphttps://www.techdirt.com/comment_rss.php?sid=20100510/1820019366Fri, 6 Jun 2014 17:00:00 PDTDailyDirt: Food Plus...Leigh Beadonhttps://www.techdirt.com/articles/20140606/14590327496/dailydirt-food-plus.shtml
https://www.techdirt.com/articles/20140606/14590327496/dailydirt-food-plus.shtml
The world is full of restaurants and chefs striving to make a mark with a new culinary concoction, but centuries of everyone on the planet eating every day has largely covered all the bases. The easiest way to come up with something new is to take something popular and add something unexpected to it, like so:

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

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]]>urls-we-dig-uphttps://www.techdirt.com/comment_rss.php?sid=20100401/0100298826Fri, 24 Jan 2014 17:00:00 PSTDailyDirt: Tips For Optimal Pizza EatingMichael Hohttps://www.techdirt.com/articles/20091109/1808446860/dailydirt-tips-optimal-pizza-eating.shtml
https://www.techdirt.com/articles/20091109/1808446860/dailydirt-tips-optimal-pizza-eating.shtmlfree samples can drive greater business. But if you just like to eat pizza, and don't care about any other aspects of the pizzabusiness (or any other business), here are just a few tips for you.

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

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]]>urls-we-dig-uphttps://www.techdirt.com/comment_rss.php?sid=20091109/1808446860Fri, 17 Jan 2014 17:00:00 PSTDailyDirt: You Are What You EatMichael Hohttps://www.techdirt.com/articles/20090928/1646466342/dailydirt-you-are-what-you-eat.shtml
https://www.techdirt.com/articles/20090928/1646466342/dailydirt-you-are-what-you-eat.shtmlSuper Size Me set out with a goal of showing everyone how unhealthy it is to eat nothing but fast food every day for a month. The movie wasn't done in any particularly controlled way, but it still seemed to provide some convincing anecdotal evidence for the common sense knowledge that fast food is usually junk food. But the counterexample for fast food is Jared Fogle who lost an incredible amount of weight eating only at Subway (and has gone on to become Subway's most famous spokesperson). Does it really matter what you eat? Of course it does, but exercise and watching how much you eat is important, too. Here are just a few other weird diets that are trying to prove some point (with varying success).

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

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]]>urls-we-dig-uphttps://www.techdirt.com/comment_rss.php?sid=20090928/1646466342Thu, 12 Sep 2013 20:06:39 PDTWhen Twitter Promotions Go Wrong: IL Pizzeria Offers Food For FlashingTimothy Geignerhttps://www.techdirt.com/articles/20130911/09474524486/when-twitter-promotions-go-wrong-il-pizzeria-offers-food-flashing.shtml
https://www.techdirt.com/articles/20130911/09474524486/when-twitter-promotions-go-wrong-il-pizzeria-offers-food-flashing.shtml
By now you should be familiar with the concept of advertising being content and content being advertising. If you're new to the class, the idea is that clever, timely, and wanted ads can be every bit as entertaining and drawing as entertainment content itself. It's essentially what makes a good ad: something you want being presented in the way you want it, all without pissing you or a large section of the customer off base. Oreo serves as a wonderful example of this, having put out a timely Twitter quip as an ad in last year's Super Bowl.

If you're a female customer who goes to Drew's Pizzeria in Champaign, you can apparently flash your boobs and walk away with some free pizza. Since sober girls usually won't flash people for free pizza, it seems that these boobs-for-pizza trades unsurprisingly happen more often at night, according to a Craigslist post.

Drew's Pizzeria's Twitter account, now deleted in an attempt to bury its head in the internet sand, offered such wonderful incentives to eat their pie as:

"FREE PIZZA for the next pair of nips right now, ladies only!"

"Pizzas $5 right at Drews or free for titties."

"WE WANT MORE TITS!!! #showusyourtits #uiuc FREE PIZZA"

Now, we have a couple of problems here. First, while you won't find a guy with a deeper appreciation of the female anatomy than I, screaming how much you want to see boobs at your pizzeria using the all-caps faux pas is akin to the creepy guy in the corner of the strip club who keeps asking one stripper exactly what time she'd be leaving out the back and whether she's allergic to ether. And who didn't see the eventual backlash coming? Large swaths of men may think of free-spirited ho-bags when the term "college girl" is uttered, but that's bullshit. College is also the place where feminism spreads, where activism finds roots, and where the love of battling a corporation is second only to a love of a cancelled class. Of course people rallied against these idiots.

But, hey, they cancelled their Twitter account, so they're clearly sorry. I imagine we'll get a claim of a hack by the Syrian Electronic Army any moment now. In the meantime, there has to be a better-behaved business that will sell you some pizza in rural Illinois.

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]]>just-gtfohttps://www.techdirt.com/comment_rss.php?sid=20130911/09474524486Fri, 19 Oct 2012 17:00:00 PDTDailyDirt: Serious Food Regulations That Don't Sound So Serious...Michael Hohttps://www.techdirt.com/articles/20101011/04404411361/dailydirt-serious-food-regulations-that-dont-sound-so-serious.shtml
https://www.techdirt.com/articles/20101011/04404411361/dailydirt-serious-food-regulations-that-dont-sound-so-serious.shtmla tomato is a vegetable in 1893). Here are just a few examples of more recent politically-charged food proposals.

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

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]]>urls-we-dig-uphttps://www.techdirt.com/comment_rss.php?sid=20101011/04404411361Fri, 14 Sep 2012 17:00:00 PDTDailyDirt: You Say Ketchup, I Say Catsup...Michael Hohttps://www.techdirt.com/articles/20100617/0714119863/dailydirt-you-say-ketchup-i-say-catsup.shtml
https://www.techdirt.com/articles/20100617/0714119863/dailydirt-you-say-ketchup-i-say-catsup.shtmlfish sauce and somehow evolved into the much more widely-consumed condiment we know today. Early recipes of ketchup contained sodium benzoate -- which was banned in the 1906 Pure Food and Drug Act. That ban led to other formulations which contained vinegar as a preservative and used ripe tomatoes. Here are just a few more fascinating factoids about this tangy, thixotropic, tomato-based foodstuff.

By the way, StumbleUpon can also recommend some good Techdirt articles, too.

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]]>urls-we-dig-uphttps://www.techdirt.com/comment_rss.php?sid=20100520/0946339512Wed, 3 Nov 2010 07:42:49 PDTPizza Shop Sues Former Employee For 'Stealing' RecipeMike Masnickhttps://www.techdirt.com/articles/20101028/04223311626/pizza-shop-sues-former-employee-for-stealing-recipe.shtml
https://www.techdirt.com/articles/20101028/04223311626/pizza-shop-sues-former-employee-for-stealing-recipe.shtmlapparently suing a former employee, claiming he "stole" their family recipes, and used them to open a competing pizza place 20 miles away. We've seen some similar disputes in the past, but have pointed out how the very lack of the ability to use intellectual property to prevent competition in the restaurant business is part of what has helped that industry thrive. Without seeing the actual lawsuit, it's difficult to know what they're actually suing him for. Perhaps they could make a trade secret claim, but recipes themselves cannot be copyrighted, so there's no copyright claim here.

But, really, as you read the quotes from the pizza shop owners who are doing the suing, it appears that they're making an emotional claim, saying things like: "Don't take something that someone else's family started and claim it as your own, because it is not." Okay, sure, but how do you think your family came up with the original recipe in the first place? It wasn't invented from scratch. They got a basic recipe from somewhere else, and perhaps improved upon it, but when someone orders a pizza from your shop, do you tell them who gave the family the original recipe? Of course not.

Then there's this: "I just don't want to compete against my own food." Right, so you're using the law for anti-competitive purposes. The law is supposed to encourage competition, not discourage it.

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]]>can't-own-a-recipehttps://www.techdirt.com/comment_rss.php?sid=20101028/04223311626Thu, 30 Sep 2010 11:24:00 PDTItaly Demands Apple Remove Joke iTunes App; Starts Legal Action Against App AuthorMike Masnickhttps://www.techdirt.com/articles/20100930/10124211240/italy-demands-apple-remove-joke-itunes-app-starts-legal-action-against-app-author.shtml
https://www.techdirt.com/articles/20100930/10124211240/italy-demands-apple-remove-joke-itunes-app-starts-legal-action-against-app-author.shtmlbtr1701 passes on the news of how Italy's tourism minister apparently has absolutely no sense of humor. There's an app in the Apple iTunes store for iPhones and iPads called "What Country," which summarizes every country in quick stereotypical snippets. It's meant to be amusing. For example:

Britain is characterised by "tea, weird sense of humour, football hooligans and rain", while Germany is summed up with "beer, discipline and autobahns". China is reduced to "overpopulation, kung fu, Great Wall, Tibet and tea ceremony", while the most defining characteristics of the US are "melting pot, hamburger and the American dream".

As for Italy, well, it's summarized as "pizza, the Mafia and scooters." And, apparently, Italy's tourism minister, Michela Vittoria Brambilla, has such a lack of humor that she declared the app "offensive and unacceptable," demanded that Apple remove it from the store and (most ridiculous of all) is asking the state's attorney to take legal action against the author. Apparently, someone thinks it's illegal in Italy to make a joke about Italy.

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]]>humor-sensors?https://www.techdirt.com/comment_rss.php?sid=20100930/10124211240Thu, 19 Aug 2010 07:04:20 PDTLittle Ceasar's Says Pizza Pizza Pizza Menu Offering Infringes On Its Pizza Pizza SloganMike Masnickhttps://www.techdirt.com/articles/20100818/18060110677.shtml
https://www.techdirt.com/articles/20100818/18060110677.shtmlMichael Scott points us to the news that lawyers for pizza giant Little Caesars are threatening a Michigan restaurant with a trademark infringement claim, because it has an item on its menu called "Pizza Pizza Pizza." For years, Little Caesar's has used the slogan "Pizza Pizza." However, it's difficult to see how anyone goes into the Pronto! Restaurant, and sees the menu item "Pizza Pizza Pizza" and thinks, "gee, I must be getting a Little Caesar's pizza with 50% more pizza!"

One aside, by the way. It's really amazing how often reporters mix up and interchange different types of intellectual property law. In the first paragraph, the reporter claims that the complaint is about "copyright," when the quote from Little Casear's (held off until the final paragraph) shows that it's clearly about trademark law. I can understand some confusion if it's never actually made clear, but this involves an article where the lawyer specifically notes that it's a trademark issue, and the reporter calls it a copyright issue in the opening... and doesn't put the quote in with the details until the very end. That just seems like really bad reporting.

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]]>pizza-pizza-pizza-pizzahttps://www.techdirt.com/comment_rss.php?sid=20100818/18060110677Wed, 7 Apr 2010 17:13:00 PDTCan You Patent Pretending To Let Customers Know Their Online Ordered Pizza Is In The Oven?Mike Masnickhttps://www.techdirt.com/articles/20100315/0058408555.shtml
https://www.techdirt.com/articles/20100315/0058408555.shtmlJeff Nolan points us to an amusing article trying to dig into some questions over whether or not Domino's "patent pending" pizza tracker is real. Launched a little over two years ago, apparently, if you order a pizza from Domino's online, it takes you to a website where it alerts you in real-time to the status of your pizza: is it in the oven, has it been put in a box, is it on its way, etc. Domino's was quite proud of the fact it had filed a patent for the technology, but there have been some concerns about whether the technology is real, or if it's just a pretty flash animation connected to nothing in reality.

The "evidence" against it being real is that one anonymous commenter on a blog post about the tracker said that it told him his pizza was in the oven and then boxed before he discovered a series of voicemails from the store claiming they could not fulfill his online order because they were "out of deep dish." The second example comes from a guy who just ordered some bottles of soda (no pizza) and was somewhat amused/horrified to watch as his order was "placed in the oven" and then boxed -- only to be delivered two hours later (a bit late) after someone called him asking him if he had ordered something from Domino's, and if so, what it was. That guy notes, of the patent application:

Is that really patent pending technology? I didn't know you could patent bull*&%t

Well, there have been patents on anti-gravity devices, even though they're not supposed to grant patents that, you know, violate the laws of physics -- so perhaps that answers the question there. There's also the patent on sending signals faster than the speed of light.

As for Domino's?

Tim McIntyre, the vice president of communications at Domino's, insisted that his company had not patented bullshit.

"The Pizza Tracker is real, and it is accurate to within 30 seconds," McIntyre told The Daily Caller just seconds after we indicated to customer service that we were investigating the veracity of the Pizza Tracker's sometimes extraordinary claims. Every update customers see on the Tracker except for the final 'delivered' update, McIntyre said knowingly, is triggered by a button press in the store itself.

He later explains that the only part that is "faked" is the delivery time. They just assume the pizza was delivered 10 minutes after it leaves the store (which I would imagine might lead to angry customers who live further away, or if there's a bad traffic jam or something). As for the complaints, apparently there's a bit of a "glitch" with this amazing patent pending technology, such that if someone at the store "clears" an order, the system interprets that as "baked and ready," since, despite all the brilliance going into this patent-pending technology, no one thought to add a feature that tells the customer something's wrong with the order.

But, of course, you shouldn't build that yourself. You might infringe on Domino's possible patent.

As for the patent application itself, I've been looking around for it and haven't turned up anything. Anyone know which patent application it is?

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]]>patenting-bullshithttps://www.techdirt.com/comment_rss.php?sid=20100315/0058408555Fri, 12 Feb 2010 06:03:00 PSTDomino's Turns A Loss In A Lawsuit It Wasn't Involved In Into A TV CommercialMike Masnickhttps://www.techdirt.com/articles/20100211/0133368126.shtml
https://www.techdirt.com/articles/20100211/0133368126.shtmleffectively admitted this in touting a brand new recipe that they insist is much, much better, and saying that customers hated the old pizza (in slightly different words). It seems the ad campaign continues to break new grounds, as well, as the latest ad actually uses a lawsuit between two competitors as the key point to bash Papa Johns -- even though the Papa Johns won that lawsuit. Found via Rebecca Tushnet, the ad itself mocks Papa Johns for "puffery" in its advertising slogan of "Better ingredients. Better pizza." Watch it below:

The actual lawsuit had nothing at all to do with Domino's, though you wouldn't know that from the commercial. It actually involved Pizza Hut suing Papa Johns over the slogan, as Pizza Hut argued that Papa Johns was implying its ingredients and pizzas were worse than Papa Johns. While Pizza Hut won at the lower level, an appeals court reversed and the Supreme Court refused to hear the appeal, so Papa Johns could use the slogan again. Domino's, again, had no part in the lawsuit, but is apparently mocking Papa Johns in its commercials for claiming in court that such a slogan involves "puffery" and wasn't meant to indicate that it's pizzas were better than a specific competitor's.

You have to hand it to Domino's ad team, though, for taking a lawsuit that didn't even involve itself, and then creating a TV ad about it, which doesn't even mention how the competitor they're mocking won that lawsuit. That's bold.

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]]>wowhttps://www.techdirt.com/comment_rss.php?sid=20100211/0133368126Fri, 15 Jan 2010 18:35:00 PSTThe Value Of Free As Analyzed By The Pizza IndustryMike Masnickhttps://www.techdirt.com/articles/20091116/1343086956.shtml
https://www.techdirt.com/articles/20091116/1343086956.shtmlexperimented this year with big time "free" promotions.

A few weeks back, reader Josh sent in this analysis from someone in the pizza industry about why "free" makes a lot of sense as a piece of a larger marketing strategy. What struck me is how similar the discussion is to the discussions we have here. There are people who complain that giving away free food "devalues" the food. You have people complaining that the "cost" of free food is too high. But, in the end, the guy makes a good case for why free is a great system, for bringing in new customers, who can turn into loyal paying customers:

Many times I hear, "Giving away free food diminishes the value of my brand." My response is usually laughter, followed by a question: "Are you kidding me?" The goal with free food is to drive qualified prospective customers into your establishment to try your food, service and experience.

Of course, the economics with food is quite a bit different than with content. With food, each "free sample" has a direct cost in that the same items cannot be sold. With content, the argument in favor of using "free" is even stronger, because you are just giving away copies -- and each copy is free to make and distribute, even if the original copy cost money.